//  8/6/19  //  Commentary

Many commentators have pointed out the overlap between the racism that Trump regularly articulates and the policies his administration pursues. On the rhetoric side, Trump told several American congresswomen to “go back” where they came from (all the congresswomen are women of color), and he led a chant to “send her back” regarding one of the women, Ilhan Omar, who also happens to be a refugee. Trump has referred to countries in South and Central America as “shithole countries” and asked why we couldn’t get more immigrants from (white) Norway. Trump calls Don Lemon “stupid” while pronouncing that he (Trump) is the “least racist person ever.” Trump pronounced Elijah Cummings’s district in Baltimore “infested,” and asked “who would want to live there?” Trump announced his presidential campaign by declaring that Mexico was not sending its best people to the United States—it was sending criminals and rapists. Trump routinely bemoans how America is being “invaded” by Central and South American migrants. And the list goes on.

The sentiments that the President routinely shares are also reflected in his policies.  The Trump administration instituted an entry ban that suspended entry from several Muslim majority countries. The administration has attempted to prevent people who cross the border outside of ports of entry from applying for asylum. It has narrowed the eligibility for asylum in numerous cruel ways. It has not initiated a single Voting Rights Act lawsuit. It has switched positions and argued that states can purge voters from voter rolls and that state laws disproportionately disenfranchising voters of color do not discriminate on the basis of race. The administration has attempted to rescind the Deferred Action for Childhood Arrivals program as well as temporary protected status for persons from Haiti (as well as other countries). It has attempted to require asylum seekers to first seek asylum in a third country. And this list, too, goes on.

The President’s racist statements understandably color people’s perceptions of the administration’s policies. When the President routinely declares that he wants more immigrants from white countries and views immigrants from south and central America as dangerous infestations, it is not hard to see many of the President immigration policies as racist. The President has already announced the racist world view that informs these policies. A different president with a similar viewpoint and policy goals might have skipped the announcements and simply enacted the policies. As some commentators like to say, this president is “saying the quiet part out loud.”

This is one of many tragic up-shots of the Trump presidency. It has reminded us that racism and racists are not a thing of the past. As other commentators have written, Barack Obama’s election shattered a glass ceiling and also fueled an angry backlash that included the election of Donald Trump. Throughout the Obama administration, many failed to see the full reality of America’s racism. Yes, we saw the outrageous allegations that Obama was not American. Yes, we understood the racial undertones of the attacks against him and his policies. But America had fired Jim Crow, right? We were just doing his exit interview, right? Wrong.

Somehow the racist voices on Breitbart seemed like outliers, the last, futile gasp of a dying ideology. Somehow the battle against the kind of racism that shouted out loud seemed like it was all but over, and that what work was left would be in eradicating the kind of racism that speaks politely and doesn’t intend to offend. Wrong. The Trump presidency is a reminder that there are still a significant number of Americans, and in fact many members of our political elite, who are open to (or at least untroubled by people embracing) the idea that black and brown people are inherently less deserving than whites to claim what America has promised.

Our legal regime and political system is informed by shared understandings about the continued existence and extent of racism. So we must reckon with what the Trump administration has made painfully clear. As we enter in earnestness into the 2020 presidential election season, there will be a temptation toward messianism. In the days after Trump’s election, t shirts were printed and statuses updated with the request to “wake me up in 2021.” There is something seductive in the idea that a new president and a new administration will put America back on track and somehow obliterate the last four years, and that electing the right Democrat will save us from our demons. 

But things are not so simple. We must reckon with the fact that the shifts in public discourse over the last four years will not disappear in 2021, and that the Overton window has now changed. (The Overton window describes the range of ideas that are accepted in public discourse. Imagine all the possible positions on any given policy topic as falling on a spectrum.) Wherever you are on the spectrum, to your immediate left and right there will likely be positions you can agree with or at least some you do not agree with but could imagine a reasonable person holding. Most people will hold views that fall within a window along this spectrum that represents all socially acceptable views; outside of this window are ideas that we would consider nutty and unacceptable. The Overton window, however, can change, and these changes can be brought about not by people inside the window, but by people outside of it. The more we hear a nutty idea, the more likely it is that the Overton window will widen to accept it. In fact, it may be that the more we hear radical political propositions, the more likely we are to accept policy propositions that we once would have thought went too far.

There are, of course, good objections to the Overton window as a descriptive framework to explain what is happening in American politics. Because of party polarization, it may be the case that there isn’t just one Overton window, but a window on the left and a window on the right with a no-man’s land of moderation in the middle. And of course for those who try to use the concept of the Overton window to blame the racist Trump voter on Breitbart so-called News and Trumpist rhetoric, there is the possibility that many people simply felt this way all along but were not speaking up because they thought it would not be socially acceptable to do so-- though now they know they have many kindred spirits and thus feel like it is safe to speak.

None of these critiques change the reality that the window of acceptable public discourse has moved to accommodate Trump’s rhetoric--particularly as zero Republicans meaningfully object to any of his rhetoric. (Marty Lederman wrote a very important post on this point.)

But the widening (or just shifting) Overton window is not the only longer-term cost of Trump’s racism. Another may be a skewed legal culture, in which it is more difficult to identify racist policies. A bare majority of the Supreme Court invalidated the addition of the citizenship question to the census. But in that case, there was a mountain of evidence that the addition of the citizenship question was a racist, partisan ploy. The extreme record  in that case may make anything short of it seem less preposterous than it actually is. 

The result may be that subsequent administrations inherit a much higher threshold for identifying racism. When commentators say that the President is “saying the quiet part out loud,” the implication is that other administrations that might want to pursue similar policies (like reducing asylum eligibility or ending TPS or DACA) would do so without broadcasting their racist motiviations to the world. And there is a real danger that people would allow a hypothetical, more competent administration—one that didn’t campaign on a promise of a “total and complete shutdown of Muslims entering the United States” or routinely insult black and brown people based on racist tropes—to enact the exact same policies as the Trump administration, precisely because that hypothetical administration would not go around saying the quiet part out loud.

If that is a real concern, perhaps it is time to revisit (again) the rule in Washington v. Davis, or at least revisit how the modern Court has applied that rule. Washington v. Davis held that facially neutral policies (policies that do not make explicit use of race) are invalid only if they were driven by a discriminatory purpose, and the Court has established a very high threshold for proving discriminatory purpose. The high threshold often requires direct evidence of discrimination (though that is not formally required). If we are concerned that more competent administrations would get a pass because they avoid producing evidence of discriminatory intent, then perhaps it is time to revisit how Davis is applied.

That legal change may occur only if our culture experiences a wider shift in the way we talk about racism.  We need to focus more on explaining what racism is, what it entails, and why it is dangerous. There is a tendency to define racism as a narrow set of beliefs, rather than as a system that operates to the systemic disadvantage of non-whites. Focusing on how policies themselves may be racist without focusing on their racist motivating purposes (or at least a narrow set of racist motivating purposes) might build important connections between the malevolent incompetent Trump administration and a malevolent competent one. If we spend more time focusing on Trump’s policies and explaining why they are racist rather than focusing on his words, that might get us part of the way there.




Deferred Reaction To the Courts

6/22/20  //  Commentary

Democratic and Republican responses to the DACA decision illustrate the different focus the two parties put on the federal courts.

Leah Litman

Michigan Law School

Versus Trump: Easha's Back, To Talk Qualified Immunity and Police Reform

6/21/20  //  Commentary

On this week’s Versus Trump, Easha Anand makes her triumphant return to talk qualified immunity and police reform. The trio talk about the proposal to reform qualified immunity and debate whether that will do much. They then break down other new legal innovations in the various proposals and ask: is it enough to create new grounds for people to sue? Or are other reforms more important? Listen now!

Easha Anand

San Francisco

Charlie Gerstein

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On Bill Stuntz, the Supreme Court’s (Sort of) Unanimous Opinion In Bostock, and the Relationship To Black Lives Matter

6/16/20  //  Commentary

Following the Supreme Court's decision in Bostock, it's worth asking: Why has the law been so successful at improving the lives of gay people but much less successful at improving the lives of people of color?